Substantial Assistance Case Law Review

(January 1, 1998 - May 5, 2000)

Larry Allen Nathans,
Jason D. Tulley,
Nathans & Ripke LLP

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The most contested issue concerning substantial assistance jurisprudence deals with defendant's attempt to force the court to grant a §5K1.1 departure based upon a plea agreement even when the government refuses to make a substantial assistance departure motion. The departure is usually addressed in the plea agreement and takes two forms, one where the language suggests the government retains sole discretion and one where the language suggests the government has bound itself more directly.

If the government retains sole discretion over whether to file the motion, the defendant can only challenge the government's denial if it is based upon an unconstitutional motive or bias, or if the refusal to file was not rationally related to any legitimate government end. [1] There is a split in the circuits as to whether, even in cases where the prosecution retains sole discretion as to whether to make the downward departure motion, the government is required to refrain from acting in bad faith. Six circuits have held that the defendant can force specific performance of the plea agreement and receive the departure if it is found the government has acted in bad faith. [2] Four Circuits adhere to the contrary position, that there is no bad faith exception. [3]

Enforcement of the bad faith exception fits easily within established contract law precedent. Without this exception, the government is legally shielded when it acts in bad faith in not moving for a substantial assistance departure. Furthermore, defendants may be discouraged from signing plea agreements where the government has unreviewed discretion as to the departure motion.

Conversely, opponents of the bad faith exception argue that Wade expresses a clear public policy in favor of providing the government with almost complete discretion to decide whether or not to make the motion. Furthermore, without governmental discretion, defendant's might hold back during proffer sessions, hoping to have the court enforce the agreement for less than full cooperation. Moreover, an inquiry by the court is likely to reveal important information, vital to an investigation, information which the government has an interest in keeping confidential. Additionally, some courts cite the interest in enforcing the plain language of the plea agreement which allows the government "sole discretion." Finally, issues raised by the defendant of this nature are likely to be difficult for the court to assess. The government may be in a better position to assess the value of the defendant's information.

In cases where the government has not retained "sole discretion" over the decision, but rather where the language of the plea agreement suggests that the government must file the departure motion (such as agreements which state that if substantial assistance is provided, the government "shall" make the motion), courts are more willing to police the government's performance to see if it was required to make the departure motion. [4]


United States v. Maldonado-Acosta, F.3d 2000 U.S. App. LEXIS 7613 (April 25, 2000) (Joining First, Third, Fifth and D.C. Circuits in holding that § 5K2.0 does not provide a basis for the district court to force the government to file a substantial assistance motion unless there is a showing of an unconstitutional motive, the government violates the agreement, or there is overwhelming evidence that the accused's assistance has been so substantial as to cry out for meaningful relief").

United States v. Jones, F.3d 2000 U.S. App. LEXIS 6998 (April 19, 2000) (Where government had retained sole discretion on whether to file substantial assistance motion and although defendant had been forthcoming, he "didn't have a lot of information about other federal defendants," denial of substantial assistance motion was appropriate).

United States v. Due, 205 F.3d 1030 (8th Cir. 2000) (Affirmed. Government had not made substantial assistance motion because it claimed defendant had been untruthful in debriefing and had terminated the interview; at sentencing agents testified from his notes (which should have been considered Jencks material but was a harmless error) explaining that defendant's minimizing of her role conflicted with other cooperators. Defendant had claimed bad faith because the government had abruptly ended debriefing without allowing her opportunity to explain her ambiguous answers which were later used against her; "truthful information" did not necessarily translate into "substantial assistance")

United States v. Hunt, 205 F.3d 931 (6th Cir. 2000) (Affirming denial of defendant's motion to compel government to file a substantial assistance motion or hold a hearing on the issue because plea agreement gave government sole discretion despite Petitioner's claim that the government acted in bad faith by not releasing him on bond to assist in providing substantial assistance, not interviewing him more than twice and not providing a lie detector test to confirm his veracity; bad faith not a basis for relief).

In Re Sealed Case, 204 F.3d 1170 (D.C. Cir. 2000) (Affirming denial of motion for § 5K1.1 departure by the court where government did not make motion because although defendant claimed court had the authority to grant the motion where the assistance helped with a non-federal prosecution under District of Columbia law, nothing in the guideline supported distinction between federal and state assistance).

United States v. Sandoval, 204 F.3d 283 (1st Cir. 2000) (Where plea agreement did not contain an agreement on substantial assistance, district court properly refused motion by defendant to compel the government to file one despite the fact that defendant had provided the government with the names of eighteen persons involved in criminal activity).

United States v. Argil, 201 F.3d 432 (2nd Cir. 1999) (District court could properly consider for substantial assistance letter from Eastern District of New York that although defendant had not provided substantial assistance to that office, she had provided such assistance to the Southern District office; defendant's claim of error that district court has not departed far enough denied).

United States v. El-Gheur, 201 F.3d 90 (2nd Cir. 1999) (Affirming denial of motion to compel government to file substantial assistance motion where defendant claimed that although he had provided useful information to the government, the negligence of the agents in exposing his identity to the targets of the investigation prevented apprehension thus constituting a breach of the agreement, but defendant had jumped bail in violation of the plea agreement so he could not enforce it).

United States v. Cruz-Guerrero,194 F.3d 1029 (9th Cir. 1999) (Affirming district court decision that §5K2.0 does not provide a separate basis for which trial court can depart downward for substantial assistance where government refuses to make the §5K1.1 motion. Departure can only be granted upon motion by government).

United States v. Hashimoto,193 F.3d 840 (5th Cir.1999) (Affirming district court's sentencing calculation where court, although granting the government's motion for a downward departure pursuant to §5K1.1, did not reduce the offense level but rather sentenced the defendant to 10% less than the mid-point of the applicable offense level).

United States v. Alegria,192 F.3d 179 (1st Cir. 1999) (Affirming district court decision that §5K2.0 does not provide a separate basis for which trial court can depart downward for substantial assistance where government refuses to make the §5K1.1 motion).

United States v. Pearce,191 F.3d 488 (4th Cir. 1999) - After government had recommended a 3 level downward departure for substantial assistance pursuant to §5K1.1, district court granted 24 and 20 level departures for co-defendants. Reversed as to the extent of the departure because the court provided no reasons for its departure other than its own discretion and counsel had argued factors impermissible in determining substantial assistance (that defendant was a good husband and father, his family relied upon him, that his career offender status was not warranted, he had been drug free for ten years, imperfect entrapment, prosecutorial misconduct in a prior state case which contributed to career offender status, and counsel harkened back to pre-guideline sentencing power of the court) instead of looking to the permissible factors relating to the actual assistance, listed in §5K1.1. Also prior state drug conviction was not minor even though defendant stated the case "was defensible" and he had pled guilty to a re-indictment following appellate court reversal of his conviction because he could then walk with time served, "we cannot conceive of any drug felony that would be considered minor").

United States v. Pillow,191 F.3d 403 (4 th Cir. 1999), cert. denied, 145 L. Ed. 2d 1112 (2000) - affirming district court's sentencing calculation where the defendant's guideline range was originally 188-235, but he had a twenty year minimum pursuant to 21 U.S.C. § 851, so the court used that (240 months) as a starting point for a downward departure due to substantial assistance, pursuant to 18 U.S.C. § 3553(e); defendant had argued that the starting point for downward departure should be 188 months, i.e that § 3553(e) removed the minimum mandatory. The Fourth Circuit held that the statute allows for a departure from the minimum mandatory, not the obliteration of it.

United States v. Laney,189 F.3d 984 (9th Cir. 1999) (Affirming district court's denial of defendant's request for a greater departure than the government had recommended under §5K1.1 claiming that the government had underestimated the extent of the assistance, court followed proper analysis and did not err in weighing prosecutor's argument more than defendants and did not err in denying evidentiary hearing where counsel for defendant submitted detailed pleadings and made lengthy oral presentation, further evidence was not required).

United States v. Vernon, 187 F.3d 884 (8th Cir. 1999), cert. denied, 146 L. Ed. 2d 337 (2000) (Affirming district court's denial of motion to compel government to file a motion pursuant to 18 U.S.C. § 3553(e), despite the government's motion for departure pursuant to §5K1.1, government refused because defendant had refused to testify at his own sentencing hearing when the government called him, defendant had not asserted any unconstitutional motive or bad faith).

United States v. Padilla, 186 F.3d 136 (2nd Cir. 1999) (Reversing district court's decision to allow government to withdraw a §5K1.1 motion it had already made, after the prosecutor filed the motion, the defendant missed his sentencing and was arrested for other state charges, based on this conduct, the government revoked the motion, the Second Circuit, looking to the plea agreement which it construed strictly against the government, held that the agreement only discussed whether the government would make the motion or not, and did not address the withdrawal of a previously made motion, thus such a withdrawal had violated the agreement).

In re Sealed Case, 181 F.3d 128 (D.C. Cir.) ( en banc), cert. denied, 145 L.Ed. 2d 369 (1999) (Affirming district court and reversing prior three judge panel's decision that sentencing court cannot make §5K1.1 departure without government 's motion, nor can court use §5K2.0 as an alternative avenue for departure for substantial assistance. Relief available to defendant only if government acts with unconstitutional motive or in bad faith).

United States v. Wilkerson, 179 F.3d 1083 (8th Cir. 1999) (Affirming district court's denial of motion to compel substantial assistance motion where prosecutor had sole discretion; government based its decision on fact that defendant had started using cocaine again and had not informed them of his drug use or source and had with his relapse into crime, rendered himself useless as a potential witness).

United States v. Da Ping Huang, 178 F.3d 184 (3rd Cir.), cert. denied, 145 L. Ed. 2d. 398 (1999) (Affirming district court's denial of motion to compel §5K1.1 motion from the government, although plea agreement did not leave to government sole discretion regarding substantial assistance, such a clause is implied by the statute and the guidelines and thus the failure of the government to make the motion can only be challenged for unconstitutional motive or bad faith).

United States v. Cerrato-Reyes, 176 F.3d 1253 (10th Cir. 1999) (Affirming district court's refusal to make substantial assistance motion where government had not made the motion, plea had left government the "sole discretion" as to whether to make the §5K1.1 motion, defendant had provided testimony at co-defendant's trial which the government characterized as "helpful" and "very credible," but that trial ended with a hung jury and defendant did not testify at second trial, the government claiming it had tried, but was unable to notify her and defendant claiming she was available and never contacted. Also affirming trial court's refusal to grant an evidentiary hearing on the factual issue of notification for the second trial).

United States v. Williams, 176 F.3d 301 (4 th Cir. 1999) (Affirming district court's refusal to void plea agreement where defendant argued that his failure to comply with agreed upon substantial assistance clause should have voided entire plea agreement).

United States v. D'Angelo, 172 F.3d 1046 (1999) (Affirming denial of motion to compel government to make §5K1.1 motion, although defendant claimed that he told all that he knew, "the question is whether the government could rationally conclude that the information that he provided was not substantial").

United States v. Solis, 169 F.3d 224 (5th Cir.), cert. denied, 68 U.S.L.W. 3225, 1999 U.S. App. LEXIS 5383 (1999) (Reversing district court's grant of five level departure for substantial assistance where government refused to make the motion because court not authorized to downward depart for substantial assistance under §5K1.1 where government fails to make a motion unless government's failure is based upon an unconstitutional motive or it acted in bad faith. §5K2.0 provides no additional grounds for departure for substantial assistance).

United States v. Doe, F.3d, 1999 U.S. App. LEXIS 3153 (1 st Cir. January 7, 1999) (The plea agreement reserved for the government the "sole discretion" as to whether to move for a downward departure based upon substantial assistance. The defendant appealed the failure of the government to make such a motion and the trial court's refusal to specifically enforce the agreement in the absence of a claim of unconstitutional bias or a claim that the failure was not rationally related to a legitimate government end. On appeal, the First Circuit refused to choose among the competing Circuits as to whether the trial court has the authority to specifically enforce a plea agreement for allegations of bad faith (as in contract law). The court held that it would not decide the issue because the defendant's allegations at most accused the government of delaying to act on the information provided until it was not helpful and thus could not even satisfy the bad faith standard).

United States v. Mikaelian, 168 F.3d 380 (9th Cir. 1999) (After government failed to move for downward departure for substantial assistance where plea agreement granted government sole discretion, defendant moved for departure nevertheless based upon unconstitutional motive, arbitrariness, and bad faith. Defendant also moved to gain access to the government's debriefing report filed in camera with the District Court. The district court denied the departure and refused to allow counsel access to the report. The Ninth Circuit reversed, remanding for specific findings as to why the district court found the government had not acted in bad faith or arbitrarily and ordered the trial court to allow the defendant access to the in camera report).

United States v. Lezine, 166 F.3d 895 (7th Cir. 1999) (Where plea agreement stated that "assuming the defendant's full and truthful cooperation" government "shall" make §5K1.1 motion, court will review government's decision not to make motion where defendant raises the issue; here, defendant's false statements, even about minor details, relieved the government of its contractual obligation).

United States v. Difeaux, 163 F.3d 725 (2nd Cir. 1998) (Letter from United States Marshal to district court indicating that defendant's assistance resulted in apprehension of another suspect could not be construed as government motion for downward departure due to substantial assistance).

United States v. Abuhouran, 161 F.3d 206 (3rd Cir. 1998), cert. denied, 43 L. Ed. 2d 562 (1999) (District court not authorized to downward depart for substantial assistance under §5K1.1 where government fails to make a motion unless government's failure is based upon (1) an unconstitutional motive, i.e. race, gender, or defendant's exercise of constitutional rights, or (2) the government acted in bad faith. §5K2.0 provides no additional grounds for departure for substantial assistance).

United States v. Orozco, 160 F.3d 1309 (11th Cir. 1998) (Defendant could not use Rule 35(b) motion to seek downward departure for substantial assistance where he provided assistance regarding suspect at time of sentence which AUSA deemed not useful, but defendant testified five years later to same information at suspect's trial; one year time limit on Rule 35(b) prevented re-sentencing).

United States v. Anzalone, 148 F.3d 940 (8th Cir. 1998) (Reversing denial of departure because government's failure to make §5K1.1 motion cannot be based upon defendant's continued drug use, only question is did the defendant provide substantial assistance, and if so, government must make motion but can also inform court of other circumstances).

United States v. Newman, 148 F.3d 871 (7th Cir. 1998) (Affirming district court's departure and rejecting defendant's argument that had government informed court of full extent of his assistance, court would have granted larger departure).

United States v. Santoyo, 146 F.3d 519 (7th Cir. 1998), cert. denied, 143 L. Ed. 2d 87 (1999) (Affirming denial of downward departure based upon substantial assistance where government did not make §5K1.1 motion, government's decision was not based on unconstitutional motive, but rather that defendant's information was just that he could not say another suspect was involved in criminal activity and so defendant offered no affirmative information, thus no departure under §5K2.0 was appropriate either).

United States v. Isaac, 141 F.3d 477 (3rd Cir. 1998) (Where plea agreement gave government "sole discretion" to file §5K1.1 motion and government decided that information provided by defendant had not been independently verified and thus was not helpful, district court erred in holding that it had no authority to review government's actions under agreement; on remand court must look to see if government's decision was made in good faith).

United States v. Campo, 140 F.3d 415 (2nd Cir. 1998) (Reversing district court's refusal to grant downward departure after government made §5K1.1 motion because court stated it needed government to make a specific sentencing recommendation and government refused to do so).

United States v. Kaye, 140 F.3d 86 (2nd Cir. 1998) (Reversing district court's denial of downward departure under §5K2.0 for substantial assistance given to local authorities, court had incorrectly held it could not depart on such grounds and only could depart under §5K1.1 upon motion of government).

United States v. Mitchell, 136 F.3d 1192 (8th Cir. 1998) (Reversing because government breached plea agreement to recommend downward departure for substantial assistance when after making the motion, government undercut its argument by stating that defendant had already received his benefit in case with reduction of charges and by presenting victim impact testimony, violating the spirit of the agreement).

United States v. Allen, F. Supp. 2d, 2000 U.S. Dist. LEXIS 5198 (March 13, 2000) (Although defendant claimed government's failure to file substantial assistance motion was based upon unconstitutional motive, his claim of selective prosecution did not rise to the level of unconstitutional motive as he did not indicate any bad faith reason that the government prosecuted him and not the person he had substantially assisted the government in targeting).

United States v. Garcia, F. Supp. 2d, 2000 U.S. Dist LEXIS 5284 (April 24, 2000) (Government's refusal to file 35(b) motion for substantial assistance proper because government did not consider assistance in civil action to count for § 5K1.1 departure and reasonably contested the actual effect of such assistance).

United States v. Khan, 77 F. Supp 2d 651 (E.D. Pa. 1999) (Government's decision not to move for substantial assistance departure was rationally related to legitimate objective because although defendant had led agents to house where they seized moderate amount of heroine, his assistance had not produced any arrests or convictions).

United States v. Pacheco,67 F. Supp. 2d 495 (E.D. Pa., 1999) (Granting downward departure for substantial assistance pursuant to §5K2.0 despite government's refusal to file §5K1.1 motion because defendant had cooperated fully, early on in the proceedings, and at great risk to herself and her family).

United States v. Vergara, 62 F. Supp. 2d 1108 (S.D. N.Y. 1999) (Granting defendant's motion to compel government to make substantial assistance motion under §5K1.1 and 18 U.S.C. § 3553(e) because government conceded that defendant's testimony had been helpful in co-defendant's trial and government reason for refusing to make motion, that defendant had violated the plea agreement by missing his own sentencing, did not excuse government's required performance of making the motion).

United States v. Reeves, F. Supp. 2d, 1999 U.S. Dist. LEXIS 12162 (S.D. N.Y. August 6, 1999) (Despite government's "inexcusable carelessness or outright falsehood" in contenting defendant did not maintain contact with agent, court did not find bad faith in government's refusal to grant §5K1.1 motion because information provided was stale (even though agents could have been more vigorous), street names could not be connected to actual people, one taped call by defendant to suspect failed because suspect knew defendant had been arrested, was suspicious, and said nothing inculpatory, and calls to two other suspects went unanswered).

United States v. Abercrombie, 59 F. Supp. 2d 585 (S.D. W.VA. 1999)(Although defendant's assistance itself was not substantial to warrant departure, and government had not moved for one, third party's substantial assistance aided by defendant did justify downward departure (government had moved for it). Four part test requires court to consider: (1) whether the third party's assistance would have counted as substantial under §5K1.1 if that party had been a defendant; (2) whether the assistance could have been received absent the government's inducement through a departure motion; (3) whether the evidence was rendered gratuitously; and (4) any other factors which weigh against awarding the departure)

United States v. Pipes, 22 F. Supp. 2d 1070 (D. Neb. 1998), aff'd, 205 F.3d 1349 (1999) (Downward departure denied because government's refusal to make §5K1.1 motion was rationally based upon opinion that defendant's assistance was not helpful and defendant had lied).

United States v. Gonzalez-Bello, 10 F. Supp. 2d 232 (E.D. N.Y. 1998) (Downward departure granted where defendant wanted to cooperate with government from outset of case and government wanted her cooperation, but her initial attorney's conflict of interest in being paid by a group that "offered her up" for conviction as member of drug ring caused him to advise defendant not to provide government assistance).

United States v. Casso, 9 F. Supp. 2d 199 (E.D. N.Y. 1998) (Defendant's request for specific performance of plea agreement in government moving for downward departure under §5K1.1 denied because government's claim that defendant had continued to commit crimes during cooperation justifies government's honest dissatisfaction with performance).


Wade v. United States, 504 U.S. 181 (1992).


United States v. Mikaelian, 168 F.3d 380 (9th Cir. 1999); United States v. Isaac, 141 F.3d 477 (3d Cir. 1998);United States v. Jones, 313 U.S. App. D.C. 128, 58 F.3d 688, 692 (D.C. Cir.) (in dicta), cert. denied, 516 U.S. 970 (1995); United States v. Stockdall, 45 F.3d 1257, 1260 (8th Cir. 1995); United States v. Lee, 989 F.2d 377, 380 (10th Cir. 1993); United States v. Rexach, 896 F.2d 710 (2nd Cir.), cert. denied, 498 U.S. 969 (1990) (pre- Wade holding reaffirmed in dicta in United States v. Ming He, 94 F.3d 782, 787 (2nd Cir. 1996).


United States v. Hunt, 205 F.3d 931 (6th Cir 2000); United States v. Aderholt, 87 F.3d 740, 742-43 (5th Cir. 1996); United States v. Forney, 9 F.3d 1492 (11th Cir. 1993) (in dicta); United States v. Burrell, 963 F.2d 976, 984-985 (7th Cir.), cert. denied, 506 U.S. 928 (1992).


See e.g. United States v. Lezine, 166 F.3d 895 (7th Cir. 1999); United States v. Mitchell, 136 F.3d 1192 (8 thCir. 1998).

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